established the existence of an agency relationship between themselves and MCM, they have

failed to establish that the employees were clients or sought to become clients at the time they

provided the information to MCM. See id. at 423 (pre-litigation questionnaires distributed to

prospective class members by plaintiffs’ attorneys not privileged where they could not establish

that employees who completed questionnaire were clients or sought to become clients when they

returned questionnaires); Schiller v. City of New York, 2007 WL 1498059, at * 4 (S.D.N.Y. May

23, 2007) (questionnaires distributed by New York Civil Liberties Union (“NYCLU”) not

privileged where NYCLU “offered no evidence that any person who completed a questionnaire

believed at the time that he or she was seeking representation by the NYCLU”).

The only information provided to this court in support of the privilege claim is that MCM

was hired by plaintiffs’ attorney to place advertisements and answer calls in response. No

information has been provided concerning the nature of those advertisements. No information has

been provided concerning the substance of the communications between MCM and the employees

both before and at the time the information was received. In particular, plaintiffs cannot establish

that the employees were told that their responses would be considered confidential attorney-client

communications.2 See Schiller, 2070 WL 1498059, at * 5. Nor have any affidavits have been

provided from the employees indicating that they believed they were seeking legal advice or

representation when they contacted MCM. See id. at * 5. And there is no indication that

2 To the contrary, under the “Privacy Policy” on MCM’s website, attached as Exhibit 2 to

defendant’s response to the motion to quash, it is stated: “Also, though we have connections to
many law firms and serve as an intermediary between them, we are not lawyers and information
you give us can not be considered protected by an attorney-client relationship.”

3

Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 4 of 7

plaintiffs’ attorneys communicated with any of these prospective plaintiffs prior to their

contacting MCM and providing the information in the questionnaires. See Morisky, 191 F.R.D. at

Finally, the court notes that plaintiffs have failed to produce a privilege log, as required by

Rule 26.1(A)(1)(c) of the Local Rules. Indeed, if plaintiffs had not inadvertently filed a

3 Mr. Bassinger’s assertions that “[a]ny and all communications between MCM and

potential plaintiffs, including all call center intake records, were made for the purpose of
facilitating the rendition of professional legal services by Plaintiffs’ attorneys” and that “such
communications and intake records assisted Plaintiff attorney’s preparation for litigation” are
clearly insufficient to meet plaintiffs’ burden. So too are Mr. Jones’ almost identically-worded
assertions in his Declaration. A privilege claim “requires more proof than a conclusion by the
party asserting the claim (or his attorney) that it is justified.” Auto Club Family Ins. Co. v.
Ahner, 2007 WL 2480322, at * 5 (E.D. La. Aug. 29, 2007) (citation omitted). “To the extent that
evidentiary support for the factual basis of the privilege is not forthcoming, the claim is little
more than a bald, conclusory, or ipse dixit assertion...[which] “forecloses meaningful
independent inquiry by the finder of facts (the judge) into the validity of the claim....” Id.
(citation omitted).

5

Case 2:06-cv-00268-KS-MTP Document 111 Filed 10/01/07 Page 6 of 7

completed questionnaire as an attachment to a notice of consent [96], defendant might still not

know about the questionnaire at all. This failure to provide a privilege log is, on its own,

sufficient to warrant a finding that any privilege, even if it had been established by plaintiffs, has

been waived. See Local Rule 26.1(A)(c) (“To withhold materials without such notice [a privilege

log] subjects the withholding party to sanctions under Fed. R. Civ. P. 37 and may be viewed as a

waiver of the privilege or protection.”); see also Coldwell Banker Real Estate Corp. v. O’Neal,

2006 WL 3845011, at * 1 (E.D. La. Dec. 29, 2006) (“In other contexts in which a privilege log is

required, failure to provide the log has resulted in a finding that any privilege has been waived.”)

(citations omitted); Morisky, 191 F.R.D. at 426-27 (noting that it was “particularly dismayed” by

plaintiffs’ failure to disclose existence of questionnaires at issue and finding this an independent